Let’s get our priorities straight

Adam recently pointed to Robert Litan and Hal Singer’s new Harvard Business Review essay in which they defend ISPs’ right to offer special handling for certain packets. They write, “The ability to purchase priority delivery from ISPs would spur innovation among businesses, large and small. Priority delivery would enable certain real-time applications to operate free of jitter and generally perform at higher levels.”

I’ve recently begun to see this sort of argument used in the net neutrality debate more frequently. Where once the mantra of the opponents of regulation was that, thanks to competition, there has never been a serious case of discrimination so that government intervention was unnecessary, now we’re hearing more and more that innovation and investment will suffer if ISPs are not allowed to offer priority services over the internet.

What Litan and Singer explain about price discrimination and product differentiation is absolutely correct. What I don’t think they understand is that “priority delivery” of content over the internet is not within ISPs’ technical capability.

First, let’s be clear what we’re talking about here. As far as I understand it, net neutrality regulation would apply to communications over the internet, not simply to communications that happen to use internet protocol (IP). Consider services like ESPN360, or edge-caching a la Akamai, or imagine Google colocating their YouTube servers at Verizon’s offices. These techniques allow users to get packets over the internet quicker, but do nothing to violate neutrality. You can also imagine Comcast offering an IP-based video game service that, much like cable TV, creates a fast direct connection between Comcast and the user. In a sense, this is prioritization of packets, but not over the internet. If I’m not wildly off-base, this would not violate any of the major net neutrality proposals, either.

So if we’re not talking about colocating, edge-caching, or creating separate IP-based networks, how exactly would ISPs offer “priority delivery” of packets over the internet? The very nature of the internet is that it is a best-efforts network. Short of a reengineering of the net, any “additional or differentiated services,” as outlined in the Google-Verizon proposal, would have to necessarily stand apart from the internet because, as much as they’d like to, ISPs cannot prioritize packets over the internet. If they could, we’d see such a service now, but we don’t.

Why can’t they do it? Because it would require the dozens, if not hundreds, of networks that a packet traverses in its travels from sender to recipient to agree to respect the same prioritization scheme. Even if we assumed that we could reengineer the internet to accomplish this, you’d have to deal with users disguising low-priority packets as high-priority ones. And because a central arbiter would likely be necessary, you’d probably lose some of the unplanned nature of the internet that makes it so wonderful.

If that’s the case, then short of reclassification of broadband as Title II, net neutrality regulation that prohibits prioritization of packets over the internet would be regulating something that ISPs can’t technically do. (Again, I reiterate here that I’m assuming that edge-caching, colocating, and separate IP-based networks would not be prohibited by neutrality rules.) So I’m starting to ask myself what’s so bad about the Google-Verizon proposal, especially if you exclude the wireless sector, where there is competition.

I’m not saying I support the deal; I’m still very suspicious of it. But I’d be curious to hear what folks think about my thesis that what it does is give the FCC power to police crimes that will never take place: prioritization over the internet (which is not technically possible) and blocking (which has been adequately checked by competition thus far).

Jerry Brito / Jerry is a senior research fellow at the Mercatus Center at George Mason University, and director of its Technology Policy Program. He also serves as adjunct professor of law at GMU. His web site is jerrybrito.com.